Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Ali v R [2014] NSWCCA 45
• Hearing dates: 12 March 2014
• Decision date: 09 April 2014
• Before: Leeming JA at [1]; Button J at [16]; RS Hulme AJ at [51]

Decision

(1) Appeal allowed with regard to count four.

(2) Sentence on count four quashed.

(3) On count four, the appellant is sentenced to a non-parole period of 6 years and 6 months to date from 4 November 2007 and expire on 3 May 2014, with a parole period of 2 years and 2 months to date from 4 May 2014 and expire on 3 July 2016.

(4) The first date upon which the appellant will be eligible for consideration for release is 4 May 2014.

• Catchwords: CRIMINAL LAW - sentence appeal after referral - indecent assault and sexual intercourse without consent - Muldrock error conceded - conditions of custody unusually arduous - applicant admitted guilt and expressed remorse after sentence imposed - whether lesser sentence warranted in law
• Legislation Cited: Crimes Act 1900 (NSW), ss 61I, 61L; Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b); Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 44(2); Criminal Appeal Act 1912 (NSW), s 6(3)
• Cases Cited: Achurch v The Queen [2014] HCA 10; Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342; Burrell v The Queen [2008] HCA 34; 238 CLR 218; Ha v State of NSW (1997) 189 CLR 465; Douar v R [2005] NSWCCA 154; 159 A Crim R 154; Montero v R [2013] NSWCCA 214; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; PGA v The Queen [2012] HCA 21; 245 CLR 355; R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim 159; R v Mirzaee [2004] NSWCCA 315; R v Van Hong Pham [2005] NSWCCA 94; R v Way [2004] NSWCCA 131; 60 NSWLR 168; Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; Viro v The Queen (1978) 141 CLR 88; Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645
• Category: Principal judgment
• Parties: M D Kowsar Ali (Appellant); Regina (Respondent)
• Representation: Counsel: I McLachlan (Appellant); T Smith (Respondent); Solicitors: Legal Aid NSW (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): 2008/5359

Decision under appeal

• Date of Decision: 2008-11-14 00:00:00
• Before: Judge Berman
• File Number(s): 2008/11/0298

Judgment

1 LEEMING JA: I agree with the orders proposed by Button J for the reasons given by his Honour. Since the consequence is a new and lesser sentence for a very serious sexual assault, I wish to explain why it is required by law. The account of the factual background provided by Button J enables me to turn to the legal issues immediately.

2 Both the primary judge who imposed the sentence in 2008 and the Court of Criminal Appeal in 2010 were bound by R v Way [2004] NSWCCA 131; 60 NSWLR 168 to have regard to the standard non-parole period (in this case, seven years). Those courts did so. However, the High Court's decision in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 made what had been done in 2008 and 2010 legally erroneous. As much was conceded by the Crown.

3 Statute provides for further review in these circumstances, pursuant to s 79 of the Crimes (Appeal and Review) Act 2001 (NSW), but only if (relevantly) there appears to be a doubt or question as to any mitigating circumstance in the case. It is now established that sentencing which by reason of Muldrock has become legally erroneous answers that description: Sinkovich v Attorney General of New South Wales [2013] NSWCA 383 (as to which see further below). In accordance with that decision, a judge referred the whole case to this Court to be dealt with once more as an appeal.

4 In light of the Crown's concession of error, the question posed by s 6(3) of the Criminal Appeal Act 1912 (NSW) is whether a less severe sentence is warranted in law. The Crown submitted that no lesser sentence was warranted. However, in order to determine whether that is so, this Court in 2014 is required to have regard to the evidence before it relating to Mr Ali's imprisonment over the last 6 years since 8 November 2007. That was established by Douar v R [2005] NSWCCA 154; 159 A Crim R 154 at [124], where the authorities were comprehensively reviewed, and has regularly been applied subsequently. The Crown made no submission to the contrary.

5 That evidence before this Court demonstrates two matters. The first (and less important) is that Mr Ali's sentence has been more arduous than that of many offenders. The first 12 months were served on protection (first as a Protection Requiring Limited Association inmate, and then as a Special Management Area Placement inmate) where he was locked in 23 hours each day. For the next 3 years he was locked in for 13 hours a day (no differently from the majority of inmates at Junee Correctional Centre) but was otherwise confined to the pod and excluded from the garden and recreational areas save for 1 hour per week. He has been, since December 2011, located in the C unit, and has progressed to C2 status. He has successfully undertaken a wide variety of courses while in prison, and has not incurred any internal disciplinary charges. This is less important for present purposes because the general nature of the likely conditions of his imprisonment was reasonably foreseeable at the time sentence was imposed, given the nature of the offence.

6 The second (and more important) matter is that contrary to the position at trial, and before this Court in 2010, Mr Ali has now acknowledged his wrongdoing. He signed the referral for the CUBIT program in June 2011 and has completed 11 of the 14 sessions in the Preparatory Program for Sexual Offenders. That took place before the Legal Aid Commission advised him (in October 2012) that his sentence was being reviewed following Muldrock.

7 Mr Ali's sworn evidence as to the steps he has belatedly taken was confirmed by the Crown. There was no application by the Crown to cross-examine Mr Ali's sworn evidence of his remorse over the last three years. The Crown made no submissions to the contrary. It would be wrong to reject any of this evidence as insincere or opportunistic, in the absence of any challenge to it.

8 Statute requires a court imposing a sentence to have regard to the remorse shown by the offender, but only if (relevantly) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and has acknowledged the injury caused by his or her actions: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3)(i). The unchallenged evidence on appeal satisfies those conditions. The same statute also requires a court to have regard to whether the offender is unlikely to re-offend, and has good prospects of rehabilitation: s 21A(3)(g) and (h). Remorse is a major factor in determining whether those further matters of mitigation exist: R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim 159 at [41].

9 Contrary to the Crown's submissions, a less severe sentence is warranted in law. The sentencing court in 2008 saw a man who displayed no remorse, and who for that reason did not have good prospects of rehabilitation, and who might re-offend in the future. The position in 2014 is quite different. The mitigating factors are material.

10 The final question is what is the appropriate sentence for the very serious sexual assault committed. I agree with Button J that there is no occasion for a finding of special circumstances so as to reduce the ratio of the non-parole period and the sentence imposed by s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), and that it is appropriate to replicate the structure at first instance, so that this Court's sentence dates from 4 November 2007.

11 Most sentencing courts lack the benefit of hindsight, and there will be few cases such as the present where the position as known on review in 2014 is so different from what was known or anticipated in 2008. (It is not the test at law, but I have no doubt that if the sentencing court in 2008 had known that Mr Ali would, albeit belatedly, acknowledge his guilt for a very serious sexual assault and would be making sustained positive steps towards his rehabilitation, a significantly lesser sentence would have been imposed.) The mitigating factors referred to above, considered in conjunction with the other matters relevant to sentence drawn together by Button J, cause me to agree with his Honour in ordering a new sentence of 8 years and 8 months (reduced from 10 years and 8 months), with a non-parole period of 6 years and 6 months (reduced from 8 years).

12 The rules within the Australian legal system change over time. They may change when new statutes are enacted (which are usually prospective but may be retrospective). In a practical sense, the rules also change when courts give a new legal meaning to existing statutes. In this country, that is inevitably retrospective; it reflects the nature of judicial power: Ha v State of NSW (1997) 189 CLR 465 at 504.

13 The rules within the legal system must be susceptible to change, but change comes at a price. What to do where retrospective change causes what was formerly legally correct to become legally erroneous is a large problem. The position can be very stark. Deane J said of the overruling of Viro v The Queen (1978) 141 CLR 88 that "It is simply wrong that an accused may be adjudged not guilty or guilty of murder according to the chance of whether his trial is completed before or after this Court has abolished a defence ...": Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 678 (legislation reversing the position was subsequently enacted). Concerns such as these were at the forefront of the dissenting reasons of Heydon and Bell JJ in PGA v The Queen [2012] HCA 21; 245 CLR 355 at [125]-[136] and [242]-[247]. In short, it is a large thing for an appellate court to change a settled rule of law or a settled construction given to statute, especially in the area of crime, as occurred in Muldrock.

14 This present appeal reflects a different aspect of the problem, when retrospective change calls into question verdicts and sentences imposed many years previously, when the time for appeals is long since past. A "central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances": Burrell v The Queen [2008] HCA 34; 238 CLR 218 at [15]. Most commonly, it arises when an appeal is brought out of time, for the appeal process is the principal qualification on the tenet of finality in litigation: Achurch v The Queen [2014] HCA 10 at [35]. One approach, not without support in the judicial decisions to which I referred in Montero v R [2013] NSWCCA 214 at [2]-[7], would be to treat such change as insufficient to warrant appellate intervention, in the absence of exceptional circumstances. That approach was drawn upon by way of analogy to applications under the Crimes (Appeal and Review) Act 2001: see Application by Frank Sinkovich pursuant to s 78 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1342 at [33]-[38], but a different approach was applied when her Honour's decision was reviewed by the Court of Appeal. It remains open to Parliament to alter the law if it is of the view that a different approach ought to be adopted in circumstances such as these, as was noted in Achurch at [35].

15 The present state of the law is that statute requires this Court to review the sentence imposed on Mr Ali in 2008, so that the legal error made in 2008 but only identified by the High Court's decision in 2011 may be corrected. In conducting that review, this Court is required to have regard to evidence not available to the sentencing judge. This Court is required to have regard by way of mitigation to the unchallenged evidence of Mr Ali's remorse and progress towards rehabilitation. In short, the existence of this further appeal, as well as its outcome, turns upon statute and the fact that, as was said in PGA at [133], "The courts are masters of the common law, but servants of statutes." This Court's sentence results from the passing of sentence according to the statutes which bind it.

16 BUTTON J: This sentence appeal comes before the Court by way of a referral pursuant to s 79(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). Accordingly, leave to appeal is not required: Carlton v R [2014] NSWCCA 14.

Issue

17 The foundation of the appeal is the submission that, in sentencing the appellant for an offence that attracted a standard non-parole period, Judge Berman SC sentenced in accordance with principles enunciated in R v Way [2004] NSWCCA 131; 60 NSWLR 168 that were subsequently disapproved in Muldrock v The Queen [2011] HCA 39; 244 CLR 120. It is also submitted that, in dismissing an appeal against sentence, the Court of Criminal Appeal proceeded on the same erroneous principles.

18 In this Court, the Crown Prosecutor expressly conceded that the error asserted was established. The real point of controversy in the appeal became whether the test contained in s 6(3) of the Criminal Appeal Act 1912 (NSW) had been made out and a lesser sentence is warranted in law. As a result, my review of the history of the matter can be brief.

Sentence in the District Court

19 On 14 November 2008, Judge Berman sentenced the appellant for three offences, each of which had been the subject of a guilty verdict after a trial by jury. The first two counts were indecent assaults, brought pursuant to s 61L of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 5 years and attracts no standard non-parole period. (The third count had resulted in an acquittal and need not be discussed further.) The fourth count was sexual intercourse without consent, knowing that the victim was not consenting, brought pursuant to s 61I of the Crimes Act. That offence carries a maximum penalty of imprisonment for 14 years, and attracts a standard non-parole period of 7 years.

20 In this Court, there was no dispute that, in considering the test in s 6(3), one could adopt the findings of fact made by Judge Berman about objective and subjective features, subject to supplementation by subsequent events. The findings of his Honour may be summarised as follows.

21 On the evening of 3 November 2007, the victim, a young woman, went out for drinks with friends in Sydney. She became intoxicated to the point of being physically ill. Concerned for her well-being and security, her friends placed her in a taxi and arranged for her to be taken home. The appellant was the driver of the taxi.

22 Throughout the journey, the state of intoxication of the victim was readily apparent, due to the fact that she vomited again out of the window of the taxi, and was drifting in and out of sleep or unconsciousness.

23 The appellant did not take the victim home. Instead, he sexually assaulted her. He touched one of her breasts under her clothing, and touched her between her legs. At the time of the first of those crimes the victim made her lack of consent perfectly clear; at the time of the latter crime she was unconscious. These acts constituted the two offences of indecent assault.

24 The appellant then drove the victim to a secluded location and disabled the in-car security video. There, he sexually assaulted her by having penile/vaginal intercourse with her without her consent, well knowing that she was not consenting. The sexual intercourse was not protected by way of the use of a condom, and the appellant ejaculated inside the body of the victim. Throughout the crime the victim was making her lack of consent perfectly clear by saying "No, no, no". She also began crying when the offence commenced.

25 After the assault had ended, the victim telephoned emergency services in a highly distressed state.

26 At trial, the appellant did not deny that the sexual contact complained of had taken place. However, he claimed that, far from the victim being the aggrieved party with regard to that contact, she was the instigator of it. Clearly, the jury rejected that proposition beyond reasonable doubt, and Judge Berman described it as "palpably false".

27 His Honour accepted that the victim had suffered "terrible consequences" as a result of the offending of the appellant. However, because his Honour did not assess those consequences as being above and beyond those that one would expect any victim of such a sexual assault to suffer, his Honour did not take them into account as an aggravating feature.

28 In the proceedings on sentence, it was established that the appellant had been convicted of nothing more than driving matters before the commission of these offences, and his Honour therefore regarded him as a person of previous good character. Born in Bangladesh, he was aged 22 years at the time of the imposition of sentence. He had come to Australia in search of educational opportunities, and at the time of the offences was studying accounting. He was driving a taxi to support himself in this country.

29 At the time of sentence, the appellant maintained his innocence. As a result, his Honour found that there was no remorse whatsoever on his part. That finding informed further adverse findings about the prospects of rehabilitation and the danger of reoffending.

30 In the event, on each of the two counts of indecent assault, his Honour imposed fixed terms of 2 years imprisonment to commence on 4 November 2007 and expire on 3 November 2009. With regard to the count founded upon sexual intercourse without consent, his Honour imposed a head sentence of 10 years 8 months with a non-parole period of 8 years to commence on 4 November 2007. The non-parole period expires on 3 November 2015, and the head sentence expires on 3 July 2018.

31 It can be seen that the sentences for the indecent assaults are concurrent with each other. They are also concurrent with, and fully subsumed within, the non-parole period of the most serious offence.

Approach to the standard non-parole period at first instance and on first appeal

32 His Honour sentenced the appellant during the currency of the principles enunciated in R v Way. With regard to the standard non-parole period, his Honour said:

The offence of sexual intercourse without consent carries a maximum penalty of fourteen years imprisonment. It has a standard non-parole period of seven years. The standard non-parole period is appropriate for an offence in the middle of the range for objective seriousness. Here the objective seriousness was high, involving full penile/ vaginal intercourse, including the offender ejaculating. He did not, of course, use a condom.

...

I have found ... that the offence of sexual intercourse without consent is above the middle of the range of objective seriousness. Even taking into account the mitigating factors in the offender's favour, I have determined that the non-parole period will be greater than that provided for an offence in the middle of the range, that is the seven year standard non-parole period sentence. I have also determined that the sentences for counts 1 and 2 on the indictment will be served wholly concurrently, they being part and parcel really of what occurred to [the victim] that evening. There are no special circumstances in this case. To take into account matters such as the offender's good character in making a finding of special circumstances would be to double count. It is the offender's first time in custody and that has sometimes been held, indeed often been held, to be a special circumstance, but the non-parole period I will shortly announce is the shortest which I consider is appropriate in the circumstances of this case.

33 An appeal against sentence to the Court of Criminal Appeal was dismissed on 2 March 2010. That was also during the currency of the principles contained in R v Way. During the course of a judgment that rejected four grounds of appeal, Johnson J (with whom McClellan CJ at CL (as his Honour then was) and RS Hulme J agreed) said at [63]:

It was necessary for the sentence to be passed on the Applicant to reflect the sentencing Judge's appropriate finding that the offence lay above the middle of the range of objective seriousness for this class of offence. The standard non-parole period of seven years had direct application given that the Applicant had been convicted after trial: R v Way [2004] 60 NSWLR 168 at 184 [68]. Subjective factors operated in the Applicant's favour but, in the circumstances of the case, it was necessary for condign punishment to be imposed, reflecting significant elements of specific and general deterrence.

Error conceded by the Crown

34 On 19 December 2013, Latham J granted an application for a referral of the matter to this court. Her Honour experienced a "doubt or question" founded upon the possibility that the remarks on sentence of the sentencing judge, along with the judgment of the Court of Criminal Appeal "applied sentencing principles that have since been discredited" (that is, they demonstrated "Muldrock error"). Her Honour records that the Crown conceded that such an error was revealed in the remarks on sentence of the sentencing judge and also in the judgment of the Court of Criminal Appeal.

35 As I have said, in this Court the Crown maintained the position that, both at first instance and in the Court of Criminal Appeal, there had been an overly rigid and direct application of the standard non-parole period to the question of sentencing for the sexual intercourse offence. The real point of dispute was the question of re-sentence, and whether this Court would be affirmatively satisfied that a lesser sentence is warranted in law with regard to count four.

Lesser sentence warranted in law?

36 In support of that proposition, counsel for the appellant read an affidavit sworn by the appellant on 17 February 2014. The Crown Prosecutor did not require the appellant for cross-examination, although she did read an affidavit of a prison employee that clarified some of the claims of the appellant about the circumstances of his incarceration. Of course, none of that material was available to the learned sentencing judge over five years ago.

37 The appellant is now 28 years of age. He has led an isolated existence in custody. The friends that he had made in this country ended contact with him after he was incarcerated. The result is that he has received no visits over the past six years. Due to a lack of funds, he is only able to telephone family and friends in Bangladesh for 10 minutes each month. As a result of a combination of factors, not the least being the notoriety of his crime within the prison system, for some years the appellant was on various forms of protection, at first quite restrictive, and subsequently less so. Throughout the years he has been progressing well, working and doing courses, and has now achieved C2 classification.

38 Most importantly, the appellant has come to accept his guilt of these sordid crimes. In his recent affidavit he deposed "I know that I should not have done what I did, as a human being to another human being." He has also commenced to address his criminality by undertaking the "Preparatory Program for Sexual Offenders" in anticipation of undertaking CUBIT, the well-known program for sex offenders in custody. As at the date of the hearing of the appeal, the appellant had attended 11 of the requisite 14 sessions in the preparatory program.

39 In considering whether a lesser sentence is warranted in law on count four, I have regarded the maximum penalty of 14 years imprisonment and the standard non-parole period of 7 years as important guideposts.

40 I have reflected upon the profound objective gravity of these offences, encompassing as they did a sexual attack upon a very vulnerable victim who was fully justified in looking to the appellant for protection rather than predation.

41 I have also borne in mind that the crime in count four featured a degree of calm execution (demonstrated by way of the disabling of the in-car video) and were made more deplorable by the fact of ejaculation within the body of the victim, thereby exposing her to the risk of pregnancy or potentially fatal sexually transmitted disease.

42 There was a degree of leniency in the original sentence structure by way of the sentences for the indecent assaults being wholly subsumed within the sentence for the offence of sexual intercourse without consent.

43 Finally, there is force in the submission of the Crown Prosecutor in this Court that the admission of guilt and expressions of remorse of the appellant are delayed by many years; certainly, they do nothing to ameliorate the fact that the victim was subject to the ordeal of a criminal trial, which included having a completely false alternative proposition put to her.

44 On the other hand, one now knows that the circumstances of incarceration of the appellant have been unusually difficult. It is also the fact that, albeit late, he has admitted his guilt and is seeking to do something about it by getting psychological help. More generally, he has used his time in custody as constructively as he can. I have also borne in mind the fact that, before the commission of these crimes, the appellant was without relevant criminal antecedents.

45 In all the circumstances, there can be no doubt that a lengthy head sentence and non-parole period are inevitable in order to reflect society's abhorrence for what the appellant did. Nevertheless, exercising the sentencing discretion afresh and taking into account all of the evidence old and new, I would impose a head sentence and non-parole period on the sexual intercourse count that is somewhat shorter than that imposed by his Honour many years ago. It follows that I consider that the test in section 6(3) of the Criminal Appeal Act has been made out.

46 Although I accept that the appellant has made good progress whilst serving his first lengthy sentence of imprisonment, I do not consider that special circumstances have been made out. The parole period that I propose is not an insubstantial one. Separately, I consider that the non-parole period is the minimum period of time that should be served by the appellant in custody for these offences.

47 I indicate that, in coming to these assessments, I have disregarded the prospects of the appellant being deported, in accordance with long-standing authority of this Court: R v Van Hong Pham [2005] NSWCCA 94 at [13]; R v Mirzaee [2004] NSWCCA 315 at [21].

48 I consider it appropriate to replicate the sentence structure at first instance; I propose that the new sentence on count four commence on the same day as the sentences for the two indecent assaults.

49 My proposal is that the appellant be subject to a head sentence of imprisonment for 8 years 8 months with a non-parole period of 6 years 6 months.

50 I propose the following orders:

(1) Appeal allowed with regard to count four.

(2) Sentence on count four quashed.

(3) On count four, the appellant is sentenced to a non-parole period of 6 years and 6 months to date from 4 November 2007 and expire on 3 May 2014, with a parole period of 2 years and 2 months to date from 4 May 2014 and expire on 3 July 2016.

(4) The first date upon which the appellant will be eligible for consideration for release is 4 May 2014.

51 RS HULME AJ: I agree with the orders proposed by Button J. I also agree with the reasons for Judgment of Leeming JA and Button J.

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Decision last updated: 10 April 2014